DIVYA Vs. NATIONAL INSURANCE CO. LTD

JUDGEMENT

(1.) Leave Granted.

(2.) Little was known to the little girl when she was taken in an autorickshaw by her parents about the jinx that she had to face and the consequences which would be lifelong and haunting, both mentally and physically. On 8/8/1998, when the appellant/claimant was a suckling, to be precise aged two years, her parents took her in an autorickshaw bearing registration No. TN-29-0958. When they were travelling from near Vaishnav College, from west to east, a car bearing registration No. TMQ-2266 driven rashly and negligently came from the opposite direction, that too through its off side, dashed against the autorickshaw. She sustained very serious injuries. Taking into account the injuries sustained and its serious consequences, after assessing the compensation at Rs.60.00 lakhs, the claimant filed an application for compensation under Sec. 166 of the Motor Vehicles Act, 1988 (for short MV Act) limiting the claim of compensation at Rs.30.00 lakhs. The Tribunal, on consideration of the evidence on record, held that the driver of the car was responsible for the accident, but dismissed the claim petition on technical grounds. It was found by the Tribunal that the vehicle was sold on 21/5/1998 viz., prior to the accident and the claimant had not taken steps to implead the actual owner of the car and, therefore, could not claim compensation from the second respondent herein, the erstwhile owner of the car as also from the insurance company. Aggrieved by the dismissal of the claim petition the claimant preferred appeal before the High Court of Judicature at Madras as CMA No. 991/2018. Upon finding that the claim petition ought not to have been dismissed for the aforesaid technical reason pending the appeal the High Court referred the claimant before a Medical Board for examination and assessment of permanent disability. The Medical Board assessed her locomotive disability as 75% and the neuro-physical disability as 40%. In fact, the Medical Board conducted such examination on 19/5/2018 viz., almost two decades since the date of accident. The Medical Board opined that the disability caused to the appellant is almost 100%. The High Court, based on the opinion given under the certificate issued by the Medical Board, considered the claim of the appellant. Obviously, the High Court found that the Tribunal was at fault in dismissing the claim petition assigning the aforesaid reason in view of Sec. 157 of the MV Act, 1988. In fact, after considering the position with respect to the aforesaid provision and also the fact that the insurance coverage of the offending vehicle was valid even on the date of the accident, the High Court came to the conclusion that the appellant is entitled to be compensated. Consequently, the award of the Tribunal was set aside.

(3.) After setting aside the award of the Tribunal, the High Court took note of the fact that about two decades have lapsed since the date of the accident to decline remand of the matter to the Tribunal. Obviously, in the interest of the justice, the High Court went on to determine the quantum of compensation. Taking note of the permanent disability incurred by the appellant in the light of the certificate issued by the Medical Board and taking into account the various heads under which compensation is grantable in the case of such serious injuries assessed the compensation as under: